SA v Minister for Justice and Equality [No 2]

 
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[2016] IEHC 646

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 233 J.R.]

BETWEEN
S.A.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY,
RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – Affirmation of deportation order – Leave to appeal to the Court of Appeal – Exceptional public importance – Assessment of country of origin information

Facts: The applicant after contesting his unsuccessful application for quashing the decision of the respondent for refusing to revoke the deportation order made against him, now sought leave to appeal to the Court of Appeal on the basis that there were two questions of point of law that needed resolution in public interest. The applicant raised two questions which pertained to the consideration of country of origin information by the respondent while deciding an application for revocation of deportation order and requirement to give reasons for rejecting that information, and validity of the deportation order in light of assessment of applicant's private life.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the first question raised by the applicant concerning the reference to the country of origin information had already been determined by the Supreme Court to the effect that elaborate discussion was not required in a decision when the decision purported to have taken the relevant factors into account. However, the Court observed that the Court had already certified a similar question before the Court of Appeal in another case, in relation to which an appeal to the Court of Appeal was pending and therefore, in those circumstances, it would not be feasible to grant another certificate in the public interest. The Court held that the second question raised by the applicant need not be certified as the law relating to that question was well settled by the Court of Appeal, Supreme Court in line with ECHR jurisprudence.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016
1

In S.A. v. Minister for Justice and Equality (No. 1) [2016] IEHC 462 (Unreported, High Court, 29th July 2016) I refused the applicant's application to quash a decision of the Minister refusing to revoke the deportation order against him. The applicant now seeks leave to appeal that decision by reference to two proposed questions of law which he submits are of exceptional public importance.

2

I have considered the case law relating to the criteria for the grant of leave to appeal including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, McMenamin J., 13th July, 2006) To the factors set out in that case law I would add four further criteria as follows:

(i). The application for leave to appeal should be made promptly and ideally within the normal appeal period (10 days in the case of a leave application and 28 days in the case of a substantive decision). The applicant has applied promptly in the present application.

(ii). The question of law should be one which is actually determinative of the proceedings, not one which if answered differently would leave the result of the case unchanged.

(iii). The grant of leave should provide some added value to any matters already before the Court of Appeal; thus the fact that an issue is independently the subject of a pending appeal would tend to dilute the public interest in the point being brought before that court a second time.

(iv). The question must be formulated with precision in a manner that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal.

The first proposed question
3

Mr. Colm O'Dwyer S.C. (with Mr. Ian Whelan B.L.) for the applicant submits firstly that the following question ought to be certified:

‘when considering an application for the revocation of a deportation order does the reference to country of origin information constitute adequate consideration of it or is the respondent obliged to give reasons as to why that country of origin information is not of assistance to the applicant's claim?’

4

Reliance is placed on the decision of McDermott J. in U.M. v. Refugee Appeals Tribunal [2014] IEHC 578 (Unreported, High Court, 28th November, 2014) paras. 21 to 25 citing the judgment of Cooke J. in I.R. v. Minister for Justice Equality and Law Reform [2009] IEHC 353 (Unreported, High Court, 24th July, 2009) at paras. 25 to 29.

5

The first of a number of insuperable difficulties for the applicant in relation to this proposed question is that the Supreme Court has already determined that narrative discussion of factors to be taken into account in a decision is not required, where the decision purports to have taken those matters into account and where there is no evidence to the contrary: G.K. v. Minister for Justice Equality and Law Reform [2002] 2 I.R. 418 (Hardiman J.), as cited in paras. 15 to 17 of S.A. (No. 1).

6

The second fundamental difficulty for the applicant is that I have already certified a similar question, albeit in the context of asylum claims, in R.A. v. Refugee Appeals Tribunal (No. 2) [2015] IEHC 830 (Unreported, High Court, 21st December, 2015). As I noted in that case at para. 4, the fact that a question has already been certified and an appeal is already before the Court of Appeal on a particular matter tends to dilute the public...

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